05 January 2016

Sentencing Blogging To Do

This post was originally written in August of 2009. The crime of escape in Colorado has since been reformed somewhat by the Colorado general assembly.

1. Post on the crime of "escape" in Colorado with more detail. The offense punishments make no sense in real life. A handful of people each year escape from jail or prison each year in Colorado, out of something on the order of 25,000 people incarcerated at any one time in jails or prisons, and often one or two of those were actually at a hospital or otherwise outside the facility when the escape happened. In contrast, something like a third of people in private community corrections are treated as escaping each year, numbering in the hundreds. Both the AWOL community corrections participant and the person who digs out under barbed wire have committted the same offense, "escape" even though the former is a major violent and physical event, while the former is mere negligence commonplace in every day life. The minimum sentence for escape is four years in most cases, and depends upon the nature of the underlying offense not the nature of the act. Punishing AWOL community corrections offenders makes sense; giving them new four year minimum sentence felonies does not. Real escape from either jail or prison should remain a serious crime, aggravated if achieved by force from a secure facility as opposed to by deceipt or in a non-secure facility. Failing to meet community corrections deadlines should be a technical violation punishable as a petty offense. This overkill unnecessarily fills hundreds of expensive prison beds in the state. About 98%-99% of escape cases are of the AWOL community corrections offender variety. Similar mistakes by parolees, who aren't obviously differently situated, or by people on bond awaiting trial, are punished much more lightly.

2. Talk about when we care about repeat offenses, and how we care. We have three different systems now: driver's license suspension based upon points for traffic offenses in a short time period; zero additional penalty other than judicial discretion for repeat misdemeanor offenses who has have modest collateral consequences of their convictions; and severe penalty increases for habitual felony offenders who have severe collateral consequences of their convictions.

The cliff is really more steep. Offenders with short criminal records often get off without any incarceration, but build up credit towards long future sentences if the conviction is for a felony. Offenders with long criminal records often get sentences near the top of the available range in addition to sentence enhancements based upon prior criminal records. Basically, one gets slaps on the wrist with dire warnings for a while, and then one is socked with life eliminating long terms in prison.

Also, ordinances, petty offenses and misdemeanors, with some particular well defined exceptions, routinely produce sentences near the bottom of the permitted range, except where there is a pattern of recidivist conduct.

With some ordinance, petty offense and misdemeanor violations we usually don't care if there is recidivism, or care only for narrow reasons (e.g. prior parking violations remain unpaid, or traffic violations are repeated and should produce a suspended license). Indeed, while all felonies carry serious repeat offense violations, we don't necessary care about recidivism in all of those cases either.

It would be good for the system to empirically determine what non-felony offenses are drawing what punishments,